Painkiller Abuse in the NFL Part III: A Tale of Two Lawsuits

Painkiller use is part of a largely unseen culture within professional sports in general, and the NFL in particular. While no one would question the need for painkillers in a sport as inherently physical as professional football, where to draw the line between legitimate pain management and painkillers as a tool for exploitation of athletes is much less clear.

As I described in Part I, a culture has developed within the league that prioritizes getting the best players on the field in order to win football games, giving fans the star players they want to see, and most importantly from a league perspective, to generate ever increasing revenue. While this isn’t inherently evil, one has to question the practice of keeping men in play who have sustained significant injuries that will be worsened by masking pain and playing through them, as well as the toll that prolonged overuse and misuse of prescription painkillers exacts on the bodies and minds of those who play the game. Stories of individual players and how they’ve been adversely impacted by the imprudent use of painkillers by their team physicians and trainers, which allegedly may reach the highest levels of the NFL itself is detailed in Part II.

The final segment of this series focuses on two lawsuits which are now in progress in the Ninth Circuit. In Dent et al vs. NFL, ten named plaintiffs, representative of thousands more allege that the NFL has illegally used painkillers to maximize profits at the expense of players, and in doing so has caused them great harm. Players state that they were given little or no choice in regard to playing through injuries, and in some cases lied to regarding the extent of injuries in order to return them to the game. This was done through prolonged use of high dosages of painkillers of various kinds. Players now suffer internal organ damage and permanent musculoskeletal damage as a result. Some have also dealt with addiction. In Evans et al vs. Arizona Cardinals et al, thirteen named plaintiffs accuse the thirty-two franchise clubs of the NFL in much the same manner. In both lawsuits, Plaintiffs are represented by Silverman Thompson Slutkin White LLC.

Richard Dent vs. NFL

This case originated in the District Court of Northern California in May 2014. Accusations against the NFL claim that the NFL: (1) defrauded and concealed information from players about the medications that were administered during their careers; (2) oversaw procurement of and monitored the dispensing of medications for its clubs, and (3) violated duties established by detailed statutory schemes that regulate the distribution and administration of such medications. Plaintiffs premise those claims on their right to have the health care they received to be administered in accordance with the law.

In December of that same year, District Judge William Alsup granted the NFL’s Motion to Dismiss, stating that the collective bargaining agreement between the league and the Players’ Association preempted the claims. Judge Alsup also wrote in his opinion, “The main point of this order is that the league has addressed these serious concerns in a serious way — by imposing duties on the clubs via collective bargaining and placing a long line of health and safety duties on the team owners themselves.” The case was appealed to the Ninth Circuit and oral arguments were heard by Judges Alex Kozinski, Jay Bybee and N. Randy Smith on December 15, 2016.

Plaintiffs assert that “well-pled allegations” should be viewed as true by the Court and that the allegations themselves should be the focus of the legal proceedings. Instead of focusing on the actual claims of illegal painkiller use by the NFL, however, other issues became the focus in District Court, including whether painkiller use was provided for within the CBA, whether or not the Court had jurisdiction to rule on the case (as opposed to CBA bargained arbitration), and whether the individual Clubs or the league itself should be considered as liable. The issues to be resolved by the Appellate Court hinge on the following arguments:

District Court analyzed Plaintiffs’ complaint under a fundamental misperception: “the individual clubs mistreated their players and the league was negligent in failing to intervene and stop their alleged mistreatment.”

The District Court’s misunderstanding of the complaint infected every aspect of its analysis and eventual conclusion.

The appeal claims that the “District Court’s Order exceeded the scope of a Motion to Dismiss,” in that “where no evidentiary hearing has been held,” the “court must accept ‘all allegations of material fact as true and construe them in the light most favorable’” to the plaintiff.” Instead, Plaintiffs believe the court adopted “a different construction of the plaintiff’s allegations so as to require interpretation of a labor contract.”

Perhaps the crux of what the Ninth Circuit judges must determine lies in the interpretation of Judge Alsup’s decision making process in what the Plaintiffs call an “over-arching premise.” This premise is that the NFL has taken positive actions to correct some of the misuse of painkillers; therefore “it would be necessary to take into account what the NFL has affirmatively done to address the problem, not just what is has not done.” The Plaintiffs state that Judge Alsup’s reasoning “constituted bold circumvention of discovery, weighing of evidence, and resolution of factual disputes.” Plaintiffs go on to elaborate, “it was plainly inappropriate for the District Court to make factual determinations about the nature and extent of the NFL’s actions and opine as to whether it deserved credit for those actions while discarding the allegations Plaintiffs actually pled.” I would go further in this evaluation to opine, at least from an ethical perspective, that actions taken after these men retired should not have bearing on their claims.

Counsel for the players’ further states that in either misunderstanding or mischaracterizing the nature of the complaint, Alsup took the liberty of viewing the individual clubs to be at fault (should fault be determined) and in doing so, dismissed the allegations against the NFL which were the actual focus of the complaint.

The lawsuit hinges on the argument that claims are based on duties independent of any labor contract which they state should require no interpretation of such a contract. To clarify, they claim that the right to receive legal healthcare supercedes care contracted for in a CBA and that the players could not have negotiated away their right to receive medical care in conformance with established law.

In contrast, the District Court’s opinion is based on the interpretation that claims are preempted by Section 301 of Labor Management Relations Act, which would imply reliance upon the CBA; specifically “the right to medical care established by the CBAs.” The Plaintiffs counter by stating, the fact that CBA addresses the ‘general subject matter’ of healthcare is irrelevant.

During District Court proceedings, the NFLPA, which is a non-party to this case, was asked to weigh in to aid in analysis of whether or not these claims could have been grieved under CBA. The NFLPA responded that, outside the possible exception of retired players covered by the 2011 CBA, they could not. Despite the union’s opinion, however, the District Court ruled otherwise. The two primary hurdles that this case must overcome in appellate court are (1.) Whether or not the case is reliant on the CBA, and (2.) Whether the proper defendants have been served.

Oral arguments in this case by Plaintiffs’ counsel Phillip Closius and Defendants’ counsel Paul Clement before the Ninth Circuit panel of judges can be viewed here. In addition to the oral arguments in this lawsuit, here are some of the key case documents:

Etopia Evans vs. Arizona Cardinals

In May 2015, approximately six months after Judge Alsup issued his order in the Dent lawsuit, Etopia Evans, widow of former NFL player Charles Evans, in conjunction with twelve other named plaintiffs, who collectively represent players from all thirty-two NFL teams filed a lawsuit against all member Clubs of the NFL. The lawsuit was originally filed in Maryland District Court but was moved to the Northern District of California, and assigned to Judge Alsup who presided over the Dent lawsuit.

The defendant change seems to be a sound strategy on the part of Plaintiffs’ counsel, in that one of the primary arguments that must be overcome in the Dent lawsuit is the opinion of Judge Alsup that liability if determined should rest with the Clubs as opposed to the league. This position was also argued in briefs from the NFL and in Paul Clement’s oral arguments.

Allegations in this lawsuit are nearly identical to those in Dent, in that the suit seeks accountability for the alleged illegal and unethical use of prescription painkillers in keeping athletes in play despite the dangers posed to their health in doing so. Recently an amended complaint was filed which also adds RICO charges to the lawsuit.

The amended complaint alleges a conspiracy on the part of NFL clubs, deeming the collective NFL entities, “The NFL Painkiller Abuse Enterprise.” The brief states that “at all relevant times,” the “Enterprise” consists of “Defendants [franchise clubs], their owners, trainers, and doctors, as well as other third-party entities and individuals associated for the common purpose of pumping players with Medications so they would stay on the field while omitting material safety information about those drugs.” The complaint states that all members “shared in the bounty” of the revenues produced by the misconduct. In essence, the “Painkiller Abuse Enterprise” constitutes the NFL indirectly as a defendant in order to overcome the challenges leveraged in the Dent case. The Clubs in this case, and according to the RICO charges are separate entities that comprise a whole, and one that has schemed together to further a single purpose.

The basis of RICO allegations rests on the belief that the NFL Clubs coordinated their actions through committee meetings and informal agreements regarding management of player injuries and how to deal with them; and while the Plaintiffs recognize that many of the efforts included legitimate medical treatment, they claim a pattern of racketeering in regard to illegal distribution and misleading information about the medications administered, as well as omissions about side effects, safety of the medications, and risk of addiction in violation of the Controlled Substances Act. This excerpt from the brief describes the violations presented:

Members of NFL Clubs in various positions have used mail, telephone and the Internet communications to coordinate in illegal interstate commerce, and in so doing, committed mail and wire fraud, a racketeering activity, according to the brief. A few of the many examples of the violations cited include: medication orders; shipment and invoicing of medications; communications about the medications; improper sealing and packaging of the medications; documents intended to facilitate medication abuse; distribution of revenues and profits to Defendants, and coordination of meeting agendas which included doctors and trainers.

Under the second and third counts of the amended complaint, the players claim “Intentional Misrepresentation” and “Concealment” in that they trusted their doctors and trainers in the friendly atmosphere of the locker room. Decision-makers realized this, and in conjunction with the teams’ medical staffs, “continuously and systematically” mislead the players by concealing and misrepresenting the treatment they received, especially in regard to the administration of painkillers and the long-term effects of the drugs. As a result, many of the players are currently suffering from, and others are at a substantially-increased risk of developing, physical and/or internal injuries resulting from the provision and administration of the medications. As part of the settlement, the players are requesting testing and monitoring of the problems incurred by painkiller abuse to help prevent or mitigate the development of the injuries at issue. They also seek compensation in regard premature ending of NFL careers, and diminished earnings in retirement as a result of the physical limitations imposed on them by the painkiller abuse.

Parallel with the RICO claims, the players alleges a “Civil Conspiracy” in violation of state, as opposed to federal laws in which each member club is charged individually.

The NFL Club Defendants responded with a number of affirmative defenses including a four-year statue of limitations on RICO charges, which they assert has passed. Their Motion to Dismiss refers to the players’ allegations, “an extravagant theory.” Other affirmative defenses used by the Defendants include, failure to allege that the claimed Injury to their business or property was caused by racketeering activity; and that Plaintiffs failed to establish the existence of any actual agreement, as opposed to unilateral decisions by employees of individual clubs. Civil Conspiracy, concealment, and misrepresentation claims were rebutted in a similar manner.

In a response to the Defendants’ opposition brief, submitted on January 4, the players provided additional specifics in addition to legal citations which appear to support their position.

A hearing on the Clubs’ Motion to Dismiss was held last Thursday, January 26, and according to Cara Bayles, who was in the courtroom and reported on it for Law360, Judge Alsup appeared to be leaning toward dismissal. Gregg H. Levy of Covington & Burling LLP who represented the defendants argued the same points against the “Civil Conspiracy” as in the opposition brief, maintaining that the players hadn’t particularized their allegations against the teams individually, while counsel for the Plaintiffs, Phillip Closius countered that the case wasn’t about one specific pill or event, but “a volume of pills” and a pattern of violations. Per Law360:

But Judge Alsup agreed with Levy, saying that because the case wasn’t a class action, the pleading had to be particularized against all the teams, and that, “just because you sued so many does not give you the right to cut corners.”

“Notwithstanding your mistrust of the entire league, it’s entirely conceivable to me that there’s a team that was a good citizen and acted properly while there were others that didn’t,” the judge told Closius. “It’s not enough to say ‘volume.’ I think you have to show that the Chicago Bears, for example, violated the Controlled Substances Act to comply with 9b. You’re suing 32 defendants, and each one has the right to have their day in court and say, ‘Prove it.’”

Closius also informed the judge that he was only about three-quarters through the documents that had been submitted in discovery and that at the time of his brief had only taken depositions on two players and had now done twenty-two; thus if given more time, he would be able to provide the particularity requested. According to Bayles, Alsup didn’t seem poised to grant the time in spite of the findings which included emails from within the Atlanta Falcons organization in which a trainer voiced concerns regarding “a culture of dependency” on pain medications and an average expenditure of over $30,000 per year on the medications and reaching a high expenditure in 2009 of over $81,000. Team owner Arthur Blank also expressed concern in the email chain, stating that he found the team’s reliance on painkillers “excessive.” Most recipients on the email chain, starting with Blank, and moving down through president Rich McKay and general manager Thomas Dimitroff to then-head athletic trainer Marty Lauzon, are still with the team.

Not surprisingly the Clubs argued that the statute of imitations for RICO charges had passed, while Plaintiffs argued that the injuries were latent, starting the “clock” at a different spot than it would have, should damages have been known at the time of the initial injury as argued in the response brief.

Analysis:

Counsel for both parties declined my request for comment, and as of today, I was informed by the court that Judge Alsup has not issued a ruling, so I called upon noted sports law attorney Dan Werly for his view regarding the arguments, here, as well as in the Dent lawsuit.

When I asked which he thought stood the better chance of success, he stated, “Evans is the more likely case of the two to succeed. The Dent case was already dismissed by the district court judge and now faces an uphill battle on appeal. The Evans case, filed by the same attorneys after the Dent case, has already defeated the teams’ CBA preemption argument,” which was the reason case was dismissed by Alsup.

In regard to what I perceived as rather harsh questioning of Paul Clement, counsel for the NFL in the Dent lawsuit, I asked Werly for his take on the line of questioning. “I wouldn’t read too much into the Judges’ questioning of Clement, this type of probing is pretty par for the course during federal appellate oral argument,” he said. “The NFL, as the appellee, is still clearly the favorite to win on appeal.”

Since Clement argued against the NFL being the proper defendant, seemingly deferring to the individual franchise clubs, who are charged in the Evans lawsuit, I wondered if his remarks might have an impact on the latter proceedings. Werly felt that Clement’s arguments attempted to preempt suits against either the NFL or its Clubs outside the constraints of the CBA. “At this stage, I don’t think this will have an impact on the Evans case,” Werly said, clarifying, “that case has already proceeded past the teams’ argument that the players’ arguments are preempted by the CBA, thus Clement’s statements are likely moot now.”

Moving on to the Evans case, I noted that RICO charges were not initially a part of the complaint but added in the amended version. I asked Werly his thoughts in this regard. “It is unclear why the players did not include this cause of action in the original complaint,” he said, however while he didn’t see the RICO charges having a high degree of success, he thought they could be beneficial to the over-all case. “Typically plaintiffs in this type of lawsuit will want to proceed under as many viable causes of action as possible.” He continued with the line of reasoning, “Although I don’t think the RICO claim is likely to succeed, it can only help the players’ case and settlement position moving forward.” He also felt that the RICO charges could buy an additional six to twelve months for the case, possibly requiring another motion from the defendants, however he seemed to feel the statue of limitations was a strong defense for the Clubs in regard to the RICO charges.

Since a couple of rulings in concussion suits have recently tossed statute of limitation arguments, because of latent injury, I wondered how this might be viewed by the Ninth Circuit in regard to the painkiller suits. “Without taking a deep dive into the applicable statute of limitations laws, this is difficult to answer,” Werly stated. “I can say however, according to the teams’ arguments in their most recent motion to dismiss, the applicable statute of limitations for the RICO claims begins as soon as the individual knows of the injury, regardless of whether they knew the injury was caused by the RICO violation.” He further told me that since the concussion rulings didn’t involve RICO claims that he doesn’t “see the Ohio [or New York] ruling coming into play here.”

For now, with oral arguments having been presented, Dent now rests awaiting the decision of the Ninth Circuit Court of Appeals, while Evans awaits Judge Alsup’s ruling on the Clubs’ motion to dismiss following the recent hearing. Should Alsup rule in favor of the defendants, which seems likely, the case will most probably be appealed to the Ninth Circuit, as well. With at least the CBA argument, presumably put to rest, perhaps the Court will finally be able to evaluate the evidence and actual allegations. For now, the players wait.

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